Kerala

Idukki

CC/189/2017

Ayyammal - Complainant(s)

Versus

Branch Manager IDCB - Opp.Party(s)

Adv.sijimon K Abraham

01 Jun 2023

ORDER

DATE OF FILING : 13.9.2017

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  1^st  day of  June,  2023

Present :

                   SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.189/2017

     Between

Complainant                                       :    Ayyammal, W/o. Suburajan,

                                                               House No.302,

                                                               Puthadi Kara, Puthadi P.O.,

                                                               Santhanpara.

(By Adv: Sijimon K. Augustine)

        And

Opposite Party                                    :    Idukki District Co-operative Bank,

                                                                Represented by the Branch Manager,

                                                                Santhanpara Branch,

                                                                Santhanpara.

(By Adv: V.V. Sunny)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

          1. This  case originates from a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Complaint averments are briefly discussed here under :

 

          Complainant had pawned her gold ornaments weighing 42 gms and availed a loan of Rs.75,000/- on 2.5.2014, from the branch of Idukki District Co-operative Bank, Santhanpara branch, which is the opposite party herein.  A token was issued by opposite party for pledging of gold and in that token, due date was shown as 2.12.2014.  On 3.12.2014, complainant had remitted Rs.5,230/- towards interest due as demanded by opposite party and had renewed the loan.  While remitting interest, complainant was informed that loan was renewed for a period of one year and it should be renewed on or before 3.12.2015.  However, complainant was unable to remit interest due on 3.12.2015, since she was undergoing treatment in Tamil Nadu.  On 17.3.2016, complainant had approached opposite party with loan amount and interest to close the loan.  When she had demanded back her gold ornaments, opposite party had informed her that those were sold in auction.  Despite repeated demands, opposite parties had refused to divulge details of gold auction.  However, owing to pressure from different corners, bank authorities had given a copy of returned notice with regard to the auction which was                                                                                                          (cont….2)

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purportedly sent to complainant.  Upon verification, it was noticed that the postal article was returned as it was not properly addressed.  Address of complainant is available in loan document.  Besides, husband of complainant has a running account in the same bank.  Facts being so, opposite party had, to make ‘unlawful enrichment’, willfully sold the gold ornaments of complainant before expiry of loan period, without proper notice, though after collecting interest and charges from complainant.  Complainant submits that she is entitled to get back her gold ornaments pledged with opposite party upon payment of loan amount with interest upto 17.3.2016.  Though complainant had repeatedly approached opposite party, it had not returned ornaments or given a satisfactory reply.  On 22.3.2016, complainant had caused to issue a lawyer notice demanding  return of gold ornaments.  After receiving the same, opposite party had sent a reply informing her that they had complied with all formalities before auction.  Complainant is entitled to receive her gold ornaments pledged.  This will not be possible without the intervention of this Forum.  Opposite party had no right to sell ornaments in auction after receiving interest and charges.  Auction formalities as per law were not complied with.  Such acts of opposite party amount to deficiency in service.  Complainant was put to much hardships by the acts of opposite parties and she had suffered damages.  Hence complainant prays for issuance of direction against opposite party to return 42 gms of gold ornaments pledged by her or in the alternate to pay market price of gold ornaments after accepting loan amount with interest upto 17.3.2016.  She also seeks a compensation of Rs.25,000/- and Rs.5,000/- towards litigation costs. 

 

          2.  Complaint was admitted and notice was issued to opposite party.  It had entered appearance and filed written version denying the complaint claim.  Contentions addressed in the written version are briefly narrated hereunder :

 

          According to opposite party, complaint is not maintainable in law or upon facts.  It is hit by Section 100 of Kerala Societies Act, 1969.  Section 70(A) of the Societies Act prescribes authorities       competent             to consider the dispute.  Upon facts, it is submitted that loan was availed on 2.6.2014. Loan period was  6 months, payment was due on 2.12.2014.  Gold ornaments pledged were weighing only 41.700 gms and for the purpose of pawn, opposite party bank had fixed net weight as 41 gms.  Complainant had unconditionally and irrevocably agreed to remit loan amount within the stipulated period and get back her gold ornaments pawned with bank.  However, complainant had not turned up to clear the dues.  Opposite party bank had issued registered notice to complainant on 5.1.2015 and 6.2.2015 with regard to loan overdues and finally auction notice on 5.3.2015.  All these notices were received by complainant.  Yet she had not done anything to clear the loan and get back her ornaments.  It is incorrect to say that complainant was made to believe that tenure of pawn was 1 year and that payment was due only on 3.12.2015.  Pawn token itself, which is self explanatory, discloses that the                                                                                                                (cont…3)

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loan period was 6 months.  In demand notice sent, date of loan, due date and principal amount were mentioned.  Complainant has not made proper remittances towards her loan dues.  Hence opposite party had, by virtue of Section 176 of Indian Contract Act, sold the pawned ornaments after giving reasonable notice to complainant.  Auction notification was duly published in Mangalam daily on 28.2.2015.  In the public auction held, ornaments were sold to highest bidder.  Auction proceedings will prove this.  Balance amount, in excess of dues, was credited to the SB Account of complainant.  Contentions that complainant had approached opposite party to clear the loan for getting her ornaments released are untrue.  Auction was conducted on 17.3.2015 after giving reasonable notice to complainant.  Paper publication was also done.  Contentions that address given in the notices are not correct, cannot be believed.  Complainant had received notice in the same address.  It is contained in the account opening form of complainant also.  There is no deficiency in service from the side of opposite party bank.  Complainant is not entitled for the reliefs prayed for.  Complaint is to be dismissed with costs.

 

          3.  Case was posted for evidence after giving sufficient opportunity to both sides to take steps.  From the side of complainant she herself and postman of Puthadi post office during the relevant period, were examined as PWs1 and 2 respectively.  Exts.P1 to P5 were admitted on the side of complainant.  Though PW2 was summoned to produce B.O. journal and postman book to be maintained by postman, he has given evidence that these documents are retained by postman only for 6 months.  Thereafter these are sent to Head Post Office at Thodupuzha. Obviously this must be the reason for their non-production by witness.

 

          After examination of PW2, case was posted for opposite party’s evidence.  From the side of opposite party, present manager of the bank was examined as RW1.  During cross examination of PW1, Exts.R1 and R2 were marked.  Subsequently, Exts.R3 to R9 were marked on the side of opposite party.  RW1 was not cross examined by complainant.  Evidence was closed and both sides were heard.  Now the points which arise for consideration are :

1)  Whether complaint is maintainable ?

2)  Whether there was any deficiency in service from the side of opposite party ?

3)  Whether complainant is entitled for the reliefs prayed for ?

4)  Final order and costs ?

 

4.  Point No.1 :

 

          First contention advanced by opposite party is concerning maintainability of the complaint itself.  According to him, as per Section 100 of the Kerala Co-operative Societies Act, 1969, there is an absolute bar against entertaining any dispute with regard                                                                                                  (cont..         ..4)

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to which provision is made in the Societies Act. These contentions are unsustainable in view of decision of Hon’ble High Court of Kerala in the matter of Enathu Service Co-operative Bank Vs. Consumer Disputes Redressal Forum and another (2011 KHC 60), wherein it was held that by virtue of Section 3 of the Act, provisions contained herein are in addition to and not in derogation of other laws in force.  Hence  we find that complaint is maintainable.  Point No.1 is  answered accordingly.

 

5.  Point Nos.2 and 3 :

 

          Complainant has contended that her gold ornaments were sold before the expiry of loan period.  That auction sale of her gold ornaments was without any notice.  It is also contended during arguments that auction formalities were not complied with.

 

          Per contra, able counsel for opposite party submits that loan was only for a tenure of 6 months.  This is born out from the documents admitted in evidence.  Oral evidence to the contrary by complainant hence is not of any significance.  Besides evidence of RW1 stands unchallenged.  Counsel further pointed out that notice was sent to the correct address of complainant as found in the loan records.  Ext.P6 is copy of loan application form containing photograph of complainant.  Its original has been submitted along with other loan documents when genuineness of Exts.R2 and R3 were challenged.  In Ext.R6, address of complainant is shown to be as, ward No.6, house No.213, Puthadi P.O.  Notice is given in the same address.  This is admitted by PW2 also when confronted with Exts.R2 and R3.  Original acknowledgement card bearing the signature of complainant are also submitted along with loan documents.  Complainant has not cleared the arrears despite notices.  That she was in receipt of auction notice which was published also. She has not turned up and cleared the dues.  Contentions that she had gone to bank with loan amount and interest are only falsities sworn  for the purpose of this case.  Pawned ornaments were sold in public auction to the highest bidder.  What remained after adjustment of loan dues was credited to the SB Account of complainant also.  It is incorrect to say that the sale was without notice to complainant.  Sale was in accordance with all legal formalities.  There is no deficiency in service from the side of bank. 

                                                                                                                  

Thus, these are rival contentions.  As per cause title given in the complaint, address of complainant is shown as, house No.302, Puthadi kara, Puthadi P.O., Santhanpara Village in Udumbanchola Taluk.  Now the dispute is only with regard to the number of house and non-mentioning of Puthadi Village or kara in the notice  sent to complainant.  It was contended that Exts.R2 and R3 are forgeries.  In fact, application was filed by complainant for summoning original AD Cards and to forward the same for expert opinion.  However, considering evidence tendered in the case, we do not think that this is necessary.   During  cross  examination,   PW1  had  denied   signatures   of                                                                                                                         (cont….5)

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addressee inExts.R2 and R3.  We notice that it was wrongly recorded that photograph copy of both sides of AD Card were handed over to witness in her deposition. Print contained was of the portion containing signature of addresse with copy of notice printed along with it, which was mistakenly considered as reverse side of A/D card.  Both AD Cards are available. Print outs of A/D card are that of concerned side of original A/D cards.  Both contain signatures of the addressee.  PW2 during cross examination had admitted that as per Exts.R2 and R3, postal articles were served in the address shown in them.  Though signature in Exts.R2 and R3 were denied by complainant, we notice that she has also not admitted the signature put by her in the vakalath executed in favour of her lawyer.  Her signature consists of writing her name  in Tamil.  Upon perusing signature in AD Card with the signature put below the deposition and in complaint, we notice that there are  only natural variations. In this context, it is also pertinent to note that complainant has a case that she was in Tamil Nadu for undergoing treatment in 2015.  Complaint has not mentioned what was the decease she was suffering from for which treatment from Tamil Nadue was necessary.  She has not stated the period or specified the months during which she was in Tamil Nadu.  Address shown in Exts.R2 is, Ayyammal, W/o. Subbaraj, Hose No.213, ward No.6, Santhanpara P.O..  Same address is given in Ext.R3 also.  In Ext.R6 and its original, address given is the same, except for mentioning of Puthadi P.O. Complainant has no case that there is a village by name Puthadi, he has no case that complainant is residing in ward No.6 of Puthadi Village and that house number is 213 in the said village.  Apparently, ward and house numbers given in Ext.R6 are of Santhanpara Village.  Name of complainant and that of her husband are correctly shown in Exts.R2 and R3.  We have gone through the original also.  There is no difference.  At this juncture, it would be apposite to go through the evidence of PW2 also.  During cross examination, he has admitted that ward No.6 comes within the limit of Puthadi post office and Santhanpara post office.  When the address cannot be trace out in Santhanpara, enquiry are conducted by postman in Puthadi in the portion of which comes under Puthadi and vice versa.  PW2 has tendered evidence that he has known the complainant for the past 9 years.  Considering evidence of PW2, identical signatures of complainant appearing in Exts.R2 and R3 and her documents, we are of the view that postal articles for which Exts.R2 and R3 were signed in acknowledgement were in fact addressed to the complaint herein.  Contentions otherwise do not appear to be correct.  Ext.R2 which pertains to a notice, seeking clearance of loan dues is seen received on 7.2.2015.  Ext.R3 pertains to serving of auction notice and is dated 9.3.2015.  Exts.R8 and R9 are proceedings of auction  and account extract of complainant.  It is clear from these documents that the ornaments were auctioned on 17.3.2015.  Original records produced contain copy of Mangalam daily dated 2.3.2015 in which auction notice is published.  Loan account numbers are given.  Per contra, it was argued that the  description of full ornaments are not shown in the auction notice published.  Such a course is not possible since the entire paper will not be sufficient to give description of                                                                                                  (cont….6)

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all gold ornaments which were to be auctioned on that date. Law contemplates only reasonable notice. It was also contended that publication was in an evening daily. Considering the countryside where the complainant is residing, we are of the view that publication in evening newspaper will be sufficient. Majority of population there is of farmers and agricultural/plantation labourers, who go to work early in the morning. Liesure time for them will be in the evening when they return home. There was due notice both individual and public. Complainant had sufficient time for approaching the Bank to clear  dues after receiving notice on 9.3.2015.  Her case that she was in Tamil Nadu owing to illness and undergoing treatment there, is not at all believable for the reasons discussed earlier.  She had received notice to clear dues and subsequently auction notice also.  However, she has not responded to the same.  Section 176 of Contract Act only mentions giving of notice to pawnee before sale within reasonable time.  This has been done by opposite party.  Case of complainant that the loan was for 1 year is also not proved.  Loan documents produced along with Ext.R6 would go to show that tenure was only for 6 months.  This has been deposed by RW1 also in her proof affidavit.  The witness has not been cross examined.  Hence we find that tenure of loan was only 6 months.  Case of complainant that it was renewed by payment of Rs.5320/- also is not proved.  Though payment is admitted, opposite party has contended that the amount was not sufficient to cover the interest due.   We also notice that as per Ext.R9 account statement, Rs.4,654/- were credited to the SB account of complainant being the excess after adjusting the loan dues from proceeds of auction sale of ornaments.  Amount is credited on 17.3.2015 itself, the date of auction.

 

       Yet another contention advanced by opposite party is that auction was conducted on 17.3.2015. Complainant has claimed that she had gone to the bank on 17.3.2016 to get back her gold ornaments after clearing loan amount with interest. This has been denied by opposite party. According to them, she had not come to the bank after 3.12.2014. Since auction was over on 17.3.2015, opposite parties contended that complaint ought to have been filed within 2 years from that date.  However, it was filed only on 13.9.2017.  There is no application to condone delay as such.  Hence complaint is time barred. We find force in these contentions.  Affidavit averments of RW1, that the complainant had approached bank only once for remitting Rs.5320/- and that thereafter, she had not come to the bank remain unchallenged.  Alleged cause of action has not been proved.  Auction was conducted on 17.3.2015 with prior notice to complainant and other affected parties. Under these circumstances, complainant ought to have preferred this complaint within 2 years of auction, the date on which cause of action had first accrued.  Sending notices subsequently will not extend the cause of action.  We find that the complaint is barred by limitation also.

 

        To conclude, we find that complaint is maintainable. However, there is no evidence to prove deficiency in service from the part of opposite party.  Complainant is not

                                                                                                                   (cont….7)

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entitled for the reliefs prayed for.  Point Nos. 2 and 3 are answered accordingly. 

 

6.  Point No.4 :

 

          In the result, this complaint is dismissed, under the circumstances, without costs.

 

          Pronounced by this Commission on this the   1^st    day of June, 2023

 

                                                                                  Sd/-

          SRI. C. SURESHKUMAR, PRESIDENT

                                 Sd/-                           

                                                                   SMT. ASAMOL. P., MEMBER

               Sd/-                                               SRI. AMPADY. K.S., MEMBER

                                                                                                         

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  Ayyammal.

PW2         -  Edwin K.

On the side of the Opposite Party :

RW1        -  Prameela. C.

Exhibits :

On the side of the Complainant :

Ext.P1      -  Copy of token for gold loan.

Ext.P2      -  Copy of counterfoil of challan for loan payment.

Ext.P3      -  Copy of legal notice issued by complainant.

Ext.P4      -  Copy of reply to legal notice.

Ext.P5      -  Copy of auction notice.

On the side of the Opposite Party :

Ext.R1     -  Copy of gold loan application.

Ext.R2     -  Copy of AD Card.

Ext.R3     -  Copy of auction notice.

Ext.R4     -  Copy of auction notice.

Ext.R5     -  Copy of paper publication of auction.

Ext.R6     -  Copy of account opening application.

Ext.R7     -  Copy of letter issued after effecting auction.

Ext.R8     -  Copy of auction details.                                           Forwarded by Order,

Ext.R9     -  Copy of account statement.

 

 

                                                                                           ASSISTANT REGISTRAR